This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.

Saturday, December 20, 2014

Landlord and Tenant Board is in Crisis Mode Once Again

The
Landlord and Tenant Board is starting to drift into crisis mode again,
sort of like the old FSP (now called the Family Responsibility Office)
did in the early 90's when the newspapers and opposition parties
attacked the government of the day, pointing out the unfairness, delays
and inefficiencies. In both cases, the governments changed the name of
the agency, hoping the problems would go away.

The backlogs for
hearings at the Board has become intolerable. Toronto South is booking
into March for return dates. Toronto North is six weeks. The LTB is
reacting by putting super-blocks in several locations in the GTA
(instead of morning and afternoon blocks) to try to make better use of
time for its Members. However these are terrible for those in the legal
profession in terms of scheduling and income, not to mention the parties who will lose time and income waiting for 5 hours for their matter to be called.

For a tenant in arrears of rent, a
delay is often as good as a win, particularly if they are living on the margins
and are resigned to drifting from place to place. If you are judgment
proof, a delay of 6 months means six months of free rent. Often
adjournments are accompanied by an order for the tenant to pay new rent
into the Board until the matter is finally resolved. There are remedies
for the landlord if a tenant breaches such an interim order, but
unfortunately they are mostly theoretical remedies as Members almost
never impose them. Keep in mind that LTB litigation for rent is unlike
Small Claims Court litigation for damages, in that the longer the
proceeding drags on, the more the ultimate damages are. Damages are
almost never fixed at the time of filing an LTB claim.

It's not
just the Board, the statute itself is full of holes, inequities and
gaps. But it's not fair to lay the blame solely at the feet of the
statute either, the Board Members have a role to play in how the statute
is applied. Under the Residential Tenancies Act there is discretion that can be exercised at every turn. Reasonableness and fairness are built into the
statute's wording, and are determined by Members making findings of fact
or exercising discretion. Decisions made on those bases are difficult
to overturn on review or appeal. When Members grant reviews that
shouldn't be granted, or grant a set aside motion that has no merit, and
deal with tenants as if they are weak and unsophisticated while
regarding landlords as wealthy and not to be trusted, the problems are
exacerbated. This just enables those who would take advantage of the
system. Members see no harm in soft justice on a case by case basis, but
it perverts the system by removing what economists would call market
discipline, and creates what they refer to as moral hazard.

If you haven't read Justice Matlow's critique of the
LTB, you have not been in the loop. It's a must-read, but more so for
the Chair of the Board, its Members and our legislators. The system is
terribly broken and ripe for abuse. But neither the government nor the Board has responded
to Justice Matlow's plea for reform.

There is far too much funding for tenant advocacy groups. At Toronto
South lately there are often three staff lawyers, part of the Tenant
Duty Counsel (TDC) program who mostly cause delay and hardship for
landlords who are just trying to pay their mortgages. Funded by ACTO
through Legal Aid Ontario, the program simply acts as an enabler for
tenants who might otherwise pay their rent, clean up their units or stop
causing disturbances. I noticed in Toronto South yesterday a new
terminal for tenants to sign in for tenant duty counsel replacing the
old paper clipboard. I see a couple of problems in it. First, it
institutionalizes the TDC program "inside the walls of the Tribunal" to a
greater extent than a clipboard. Many Members in their preamble make
the point that the TDC program is NOT part of the LTB. Yet their
computers are inside the door.

At the Toronto East District
Offices (Scarborough) the TDC office is actually inside the LTB. Do
they pay rent? How much? And with the new sign-in terminal for TDC at
Toronto South, plugged into the walls of the LTB, who is paying for the
electricity to run the terminal? When landlords see the TDC offices
inside the doors of the LTB, with their computer terminals in the hall,
they wonder how they can possibly get fair adjudication.

The
government social assistance programs are swelling. Many of those
recipients are tenants, many in trouble because the government refuses
to mandate that rent be paid from assistance payments directly to
landlords, rather than to the tenant who may then choose to withhold
rent. Governments don't realize that they are actually doing a
disservice to tenants by letting arrears grow to the point that there is
no way to save the tenancy.

The Provincial Liberals say that they want to create more affordable
housing. A few years ago they passed the Strong Communities Through
Affordable Housing Act. It mandated a return to legal second suites in
communities across the province to create a system of less expensive
basement apartments.

But municipalities, more concerned with garbage and sewage volume,
never got on board, and moreover, the Liberals are presiding over the
punishing adjudication of the same small landlords who they are trying
to entice to put in second suites. All of us in the paralegal business
have seen landlords getting out of the rental business. The only reason
the rental numbers swell is because of the growth of the condo market
caused by Ontario's unique and lucrative residential real estate market.

Rental housing is complicated. This government has no interest in
dealing with it in an adult manner, they ignore the problem and are
disingenuous in all respects. Why are opposition parties (the
Conservatives) not all over this?

4 comments:

Anonymous
said...

While I agree with most of what you say sir, I can't agree with forcing social assistance recipients to pay direct to their landlord. There are many people that do not want others to know they are on assistance. Further, there is the issue of discrimination. Why should people on assistance be deemed less trustworthy than those that have jobs, even low paying jobs? If such a policy apply to people on assistance, then maybe a law should be passed to force people's employers to pay directly to the landlord their rent ... believe it or not sir, many of the tenants that are not paying the rent also work sometimes at crappy jobs, but they still work. The issue with social assistance is the rates. Often times there isn't enough money for both the rent and everything else, like food and clothing. I know this is not the landlord's fault, but I think there needs to be a hike in social assistance rates so people can afford basic shelter costs.

My family got out of the landlord business. We sold the 4plex to a man who converted the top floor to his own large apartment and rents the lower ones. Our last 2 tenants trashed the place, and didn't feel like paying rent because they didn't have to. We have 'untouchables' in this province - people on ODSP or OW. If you have a job, you cannot afford to miss work and constantly go to the LTB to chase after owed rent and evictions. OW recipients can pay rent 3-5 months of the year because it takes so long to evict. They pocket the rest and move to another landlord victim.

We have a tenant from Hell in Ottawa. He started by not transferring the Hydro, then bouncing a cheque, then the "stress" lawsuits filed to the LTB started. He couldn't stop an eviction so being in the construction industry, damaged the property & called in the city bylaw to show them violations. He used other forms of severe intimidation such as photographing our home and us until I had to go to the police. Turns out he's on bail and well we should have done a criminal records check. He brought the bylaw officer to LTB to testify and while we were granted the eviction finally after 2 months, he was awarded %50 of his rent back for the testimony the bylaw officer provided. By the way, he called bylaw in before ever giving us a complaint and the reason is, there was nothing to complain about and he knows it. I proved this at the LTB hearing yet they sided with him. Every lawsuit and act of going berzerk, happened only when we asked for rent. This board is extremely unreasonable. However thank goodness that the crimes are a police matter and not the LTB or he'd be allowed to live rent free, harass us, AND rip our place to shreds.

Moving from a one bedroom flat to a two bedroom flat to a four bedroom house in just over a year, I've wanted to buy lots of furniture to fill the place up, but the financial reality means I've had to be patient with my acquisitions. Right now all of the rooms in our new house are "missing" various bits and pieces. landlord.